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    [2006] UKSSCSC CIB_3327_2004 (11 July 2006)

    CIB/3327/2004
    INTERIM DECISION OF THE SOCIAL SECURITY COMMISSIONER
  1. I allow the claimant's appeal. I set aside the decision of the Sheffield appeal tribunal dated 11 March 2004. I will give a decision in place of the tribunal's when the claimant's appeal to an appeal tribunal against the Secretary of State's decision of 13 January 2006 (erroneously dated 13 January 2005) has been determined.

    2. REASONS
  2. The salient facts of this case are not in dispute. The claimant was incapable of work from 19 January 1999 to 7 February 1999, when she was suffering from influenza. She was not entitled to statutory sick pay and so claimed incapacity benefit. Incapacity benefit is a contributory benefit and, by virtue of paragraph 2 of Schedule 3 to the Social Security Contributions and Benefits Act 1992, there are two contribution conditions, the second of which is that –

    3. "(a) the claimant must in respect of the last two complete years before the beginning of the relevant benefit year have either paid or been credited with contributions of a relevant class or been credited (in the case of 1987-88 or any subsequent year) with earnings; and
    (b) the earnings factor derived … must be not less in each of those years than the year's lower earnings limit multiplied by 50".

    The last two complete contribution years were 1996-97 and 1997-98. In the latter year, the earnings factor derived from the claimant's contributions or credited earnings was recorded as being less than 50 times the lower earnings limit. Consequently, the adjudication officer disallowed the claimant's claim for incapacity benefit.

  3. On 20 May 1999, the claimant sought "to appeal to the Secretary of State" as to the amount of her earnings factor. At that time, claims for benefits were determined by adjudication officers under section 20 of the Social Security Administration Act 1992 and contribution questions, including the question whether the contribution conditions for any benefit were satisfied, were determined by the Secretary of State under section 17. Adjudication officers were permitted to make decisions on the basis that the contributions record held by the Benefits Agency was correct and, if the claimant disputed it, the Secretary of State could be asked to make a formal determination under section 17 (regulation 19 of the Social Security (Adjudication) Regulations 1995 (SI 1995/1801). There was a right of appeal to a tribunal against a decision of an adjudication officer under section 22 of the 1992 Administration Act. The only appeal against a determination of the Secretary of State lay to the High Court under section 18. The claimant's "appeal" to the Secretary of State was therefore a request for a formal determination.

  4. The lower earnings limit in 1997-98 was £62. In order to satisfy the second contribution condition for incapacity benefit, the claimant therefore had to have an earnings factor of £3,100 (50 x £62), which would have been achieved if she had paid Class 1 contributions on earnings of £3,100. However, in fact the claimant had paid contributions on only £2,901. That was because, if a person's earnings in a particular week are less than the lower earnings limit, there is no liability for Class 1 contributions and, while the claimant had earned £3,371.72 from her main employer in 38 weeks of the 53 weeks in 1997-98, her earnings were less than £62 in nine of those weeks and so no earnings factor was acquired in those nine weeks. £2,901 was the amount she had earned in the other weeks. She also worked for another employer for one week and earned £154 but, as that employer had a monthly payroll system, no contributions were paid in respect of those earnings because, averaged over a month, they fell below the lower earnings limit. Therefore, despite earning £3,525.72 during the year, the claimant had acquired an earnings factor from paid contributions of only £2,901. She had also been credited with earnings equal to the lower earnings limit in respect of two weeks (19 October 1997 to 2 November 1997) when she had claimed jobseeker's allowance from 17 October 1997 to 2 November 1997, but that still left her with an earnings factor of only £3,025.

  5. In her "appeal" of 20 May 1999, the claimant pointed out that, had her earnings been evenly spread out over the year, she would have paid sufficient contributions to entitle her to incapacity benefit and she submitted that the Benefits Agency's interpretation of the law was "grossly unfair" and discriminated against women because women were overwhelmingly the majority of part-time workers who were most affected by the rules. She also said that she had been unaware until her claim for incapacity benefit had been disallowed that she had not been awarded credits when she had claimed jobseeker's allowance from 26 March 1997 to 20 April 1997. Two weeks during that period fell in the year 1997-98 and had credits been awarded she would have had an earnings factor of £3,149, which would have been just sufficient to entitle her to incapacity benefit. She submitted that those credits should be awarded.

  6. As was frankly admitted by the Benefits Agency's office in Rotherham in a letter dated 8 September 2000, the claimant's appeal ran into procedural difficulties arising out of changes to the adjudication of both claims for benefit and contributions issues. By the Social Security Act 1998 which came into force on various dates in 1999, the responsibility for determining claims for benefit was transferred from adjudication officers to the Secretary of State but, by the Social Security Contributions (Transfer of Functions, etc.) Act 1999 which came into force on 1 April 1999, the responsibility for determining most contributions issues was transferred from the Secretary of State to the Inland Revenue, which, in 2005, was merged into Her Majesty's Revenue and Customs.

  7. However, the division of responsibility between the Secretary of State and the Inland Revenue after the changes was not quite the same as the previous division of responsibility between adjudication officers and the Secretary of State. In particular, " a decision whether a person is entitled to be credited with earnings or contributions in accordance with regulations made under section 22(5) of the Contributions and Benefits Act" remains a decision of the Secretary of State against which there now lies a right of appeal to an appeal tribunal (sections 8(1)(c) and 12(1)(b) and (2) of, and paragraph 17 of Schedule 3 to, the 1998 Act, which were brought into force for these purposes on 18 October 1999 – see article 2(c)(iv) of the Social Security Act 1998 (Commencement No. 11, and Savings and Consequential and Transitional Provisions) Order 1999 (SI 1999/2860)) and, while it is for the Inland Revenue to decide "whether contributions of a particular class have been paid in respect of any period" (section 8(1)(e) of the 1999 Act), it appears to be for the Secretary of State to decide whether or not the contribution conditions for a benefit are satisfied by those payments.

  8. Unfortunately, a new decision by the Secretary of State issued by the incapacity benefit section in the Rotherham office with the letter dated 8 September 2000 did not deal with the question of the claimant's entitlement to credits. It merely reiterated the decision given by the adjudication officer on 24 February 1999 to the effect that the claimant was not entitled to incapacity benefit because she did not satisfy the contribution conditions. Not surprisingly, the claimant asked for the new decision to be reconsidered for the reasons given in her previous letter of 20 May 1999 and she repeated her submission that two further credits should have been awarded during the relevant year. On 31 October 2000, the Secretary of State declined to revise the decision and the claimant appealed.

  9. In February 2001, the case was referred to the Inland Revenue. It is not entirely clear whether that was done by the Secretary of State before the appeal was forwarded to the tribunal or by the tribunal itself, but nothing turns on the point. It also appears that a file was lost and a duplicate had to be made up. In any event, on 5 September 2001, the Inland Revenue set about making a formal determination, making enquiries about the claimant's earnings. On 6 June 2002, the claimant was asked to make a formal application if she wanted a formal decision. In her reply to the Inland Revenue on 20 June 2002, she wrote, so far as is material –

    10. "I have received your letter d/d 06.06.02. Would you please let me know in writing why I have to keep confirming that I wish to continue with my appeal.
    "It might be more productive for the department if you looked into the credits I should have been awarded.
    "I claimed Jobseeker's Allowance for the period 26.03.97 to 20 .04.97. This was disallowed under agency workers rules. I was told that I was 'working over 16 hours a week'. I appealed against the decision but I did not get the opportunity to present my case. The case was heard in my absence and the next communication I had was to tell me the appeal had failed. I felt that I could do without the hassle, so did not follow this up. I did not realise that I had not been awarded NI credits.
    "My case was that the number of hours a week that I worked varied too much to enable an average to be taken that would be fair. Also a week of 34 hours was included which was very unusual. I should have been treated as a part time worker and completed B7s weekly. I did not work at all during that period so I should have been paid JSA and awarded credits. Even as it was dealt with the average should have been recalculated and I would have been accepted as part time and credits awarded.
    "Another claim for Jobseeker's Allowance from 17.10.97 to 02.11.97 was disallowed under the agency rules because of my 'part time earnings' taken from an average of the previous 5 weeks. I did not work at all during that period. I was not issued with B7s but at least I was awarded credits.
    "Had I claimed at an office in a different area both claims would have been successful."
  10. This prompted the Rotherham office to ask the Jobcentre in Maltby that dealt with claims for jobseeker's allowance to say whether any credits should have been awarded to the claimant in the period in issue. The reply to the Rotherham office on 23 July 2002 was –

    11. "During the period 26.3.97 to 20.4.97 – Please note [the claimant] had a contract to work as a social survey interviewer although no actual work was available. Therefore JSA and/or credits are not awarded."
  11. On 29 July 2002, the claimant wrote to the Maltby Jobcentre, reiterating the points she had made to the Inland Revenue on 20 June 2002. On 16 August 2002, she received a reply saying that "all the paperwork relating to your Jobseeker's Allowance for the periods 26 March 1997 to 20 April 1997 has been destroyed … in accordance with Data Protection regulations – all paperwork is destroyed 14 months after the claim is closed". The claimant responded by pointing out that her claim for jobseeker's allowance had not been closed until May 1998, less than 14 months before she had raised the question of the credits in May 1999. The Maltby Jobcentre replied to the effect that, as the claimant had lost her appeal to the tribunal, no credits were due. The claimant then reiterated her point that she had never been informed of any decision relating to credits. The Maltby Jobcentre then referred the case to Leeds for legal advice, following which they wrote to the claimant on 6 May 2003 explaining the effect of regulation 51 of the Jobseeker's Allowance Regulations 1996 (SI 1996/207) and R(IS) 8/95 (to which I will return at the end of this decision). They also said that they had been advised that she needed to take the issue of her missing credits up with the Inland Revenue. On 21 May 2003, the claimant duly wrote to the Inland Revenue again, saying that credits should have been awarded in respect of her claim for jobseeker's allowance from 26 March 1997 to 20 April 1997.

  12. Meanwhile, the Inland Revenue had been continuing with its enquiries about the contributions paid by the claimant in respect of her employment. On 22 January 2003, the claimant once again informed the Inland Revenue that she did not dispute the contributions paid in connection with her main employment. She suggested that the contributions paid in connection with her other employment could be investigated. On 13 June 2003, the Inland Revenue eventually issued a formal decision which was to the effect that the claimant's second employer had not been liable to deduct contributions from her earnings.

  13. It is clear that the claimant's letter of 21 May 2003 concerning the missing credits had not been linked to the documents leading to the decision of 13 June 2003. On 5 August 2003, a caseworker of the Inland Revenue replied to the letter of 21 May 2003, saying that he had checked the claimant's account and she had been awarded two credits for the 1997/98 tax year. The claimant replied, pointing out that she was aware of that and that she had been writing about two separate credits that were missing. In an undated letter, the caseworker wrote to say that he had amended her records to record that she had four credits in that tax year, but that the year would still not count towards retirement pension. (That is because the second contribution condition for retirement pension has regard only to years where the earnings factor derived from contributions is at least 52 times the lower earnings limit). This decision was promptly countermanded. In a telephone conversation with the Rotherham office on 4 September 2003, the caseworker explained that he had wanted to resolve the issue because it had been going on for so long and he had not thought the credits would make any difference because he had been "unaware of the current appeal or the appeal she had already for the JSA credits from 26.3.97 to 20.4.97 which she lost." On 5 September 2003, he wrote to the claimant to say that the credits had been awarded in error because "this office does not make decisions on JSA credits". The claimant was advised once again to take the matter up with the Maltby Jobcentre.

  14. This was the position when the Secretary of State made a written submission on the incapacity benefit appeal which had been lodged three years earlier. In paragraph 8 of the submission, it was said –

    15. "It has been confirmed by the Jobseeker's Allowance section that [the claimant] claimed Jobseeker's Allowance from 26.3.97 to 20.4.97. During this period [the claimant] still had a contract to work as a Social Security [sic] interviewer although no actual work was available. The Law states that if there is a Contract, notwithstanding whether any work is done or not, Jobseeker's Allowance cannot be paid and the claimant is not entitled to credits. [The claimant] appealed against the decision as she has stated, but the decision was upheld by the Tribunal. The 2 Jobseeker's Allowance credits shown on [the claimant's] account for the 1997/1998 year are for the period 17.10.97 to 2.11.97 and have been correctly awarded."
  15. The claimant replied with references to European Union law. When the case first came before the tribunal, on 24 November 2003, it was adjourned so that fuller submissions on European Union law could be submitted. The appeal came back before the tribunal on 11 March 2004, when it was dismissed. I am not entirely sure that the tribunal really understood the parties' arguments but the upshot was that it decided that no discrimination contrary to Directive 79/7/EEC was involved in the case.

  16. On 10 April 2004, when she applied for a statement of reasons, the claimant also applied for tribunal's decision to be set aside on the ground that she had been expecting the Department for Work and Pensions to reconsider her case in the light of a letter dated 9 December 2003 from the Maltby Jobcentre informing her that, after all, credits would be awarded in respect of the period from 26 March 1997 to 20 April 1997. This was the result of the claimant having gone back to the Maltby Jobcentre following receipt of the letter dated 5 September 2003 from the Inland Revenue. It appears that she had been expecting her case to be reconsidered independently from the appeal. Perhaps because it was sent at the same time as the request for the statement of reasons, the application for setting aside was overlooked until two months after the statement of reasons had been issued. On 14 July 2004, a full-time chairman refused the request for the setting aside of the decision on the grounds that the claimant had had the letter before the tribunal's hearing and that, in any event, the credits would have made no difference. On 9 August 2004, the claimant wrote to point out that the two credits would have made a difference to the outcome of her appeal. The full-time chairman granted leave to appeal.

  17. In her grounds of appeal against the tribunal's decision the claimant relied solely upon her European Union law argument. When the case first came before me, I raised the question whether this was a case like R(IB) 5/04 in that it involved a challenge to the rules relating to the liability to pay contributions which is not a matter within the jurisdiction of appeal tribunals or Commissioners. The claimant's application for the setting aside of the tribunal's decision was not in the papers before me. The Secretary of State adopted the point I had raised but, in reply, the claimant referred to the question of the two credits that she had apparently been awarded in December 2003.

  18. The claimant's reply caused me to take a fresh look at this case. I found a copy of the letter dated 9 December 2003 in the tribunal's file and directed the Secretary of State to make another submission. I then directed an oral hearing, because I was not satisfied that there had ever been a proper decision as to the claimant's entitlement to credits in 1997-98, and also directed the claimant to produce such documents as she had concerning her entitlement to credits or jobseeker's allowance in that year. At that time, I was somewhat confused as to which credits were in issue but that was quickly clarified by the claimant who obviously has very much better records than the Department for Work and Pensions so far as her case is concerned and was able to produce far more by way of relevant documents than I had expected.

  19. Some of the documents the claimant produced have enabled me to fill in gaps there would otherwise have been in the above chronology, because the documents in the bundle before the tribunal had naturally been confined to documents of which the incapacity section at Rotherham had been aware. The documents also showed that, on 8 October 2004, the Inland Revenue wrote to the claimant to confirm that her contribution record had been updated and now showed no shortfall even for retirement pension purposes. However, on 12 October 2004, the Rotherham office wrote to her saying that they had asked the Maltby Jobcentre to check whether the credits were really due. On 10 December 2004, they wrote again, saying –

    20. "Further enquiries with the Jobcentre show that the only credits due to you are from 19/10/97 to 02/11/97 (2). None are due from 06/04/97 to 20/04/97 as your claim for Jobseeker's Allowance (JSA) was disallowed and the circumstances of the disallowance mean that no credits are due.
    "The Inland Revenue had incorrectly advised that 2 credits were due from 06/04/97 – 20/04/97, they were not due and it is not for the Inland Revenue to decide that the credits were due or not. The letter of 09/12/03 from Maltby Jobcentre is incorrect."

    On 21 December 2004, the claimant wrote back to protest, but to no avail.

  20. The claimant was also able to produce a copy of the original letter from the Maltby Jobcentre telling her of the disallowance of jobseeker's allowance from 26 March 1997 on the ground that she was working on average for 16 hours or more a week. It says nothing about the crediting of contributions. In contrast, the letter from the Dinnington Jobcentre informing the claimant of the disallowance of jobseeker's allowance from 3 November 1997 on the same grounds says –

    21. "We may still credit you with Class 1 National Insurance contributions if you continue to attend the Jobcentre"

    However, neither decision purports to be a decision as to entitlement to credits. They are concerned only with entitlement to jobseeker's allowance. It follows that the appeal against the first of those decisions cannot have resulted in a decision by the tribunal as to the claimant's entitlement to credits. This is not surprising because adjudication officers and tribunals who then had jurisdiction to make decisions in respect of jobseeker's allowance had no power to make decisions in respect of the crediting of earnings or contributions.

  21. The question I posed when I first directed that there be an oral hearing of this appeal was whether there had ever been a proper decision in respect of the claimant's entitlement to credits in the year 1997-98. Mr Tim Buley of counsel appeared on behalf of the Secretary of State and conceded that there was no evidence of such a decision. Accordingly, I adjourned the hearing and said that the Secretary of State should either produce evidence that such a decision had already been made in respect of the disputed period in April 1997 or should make such a decision. I need not set out here the sequence of submissions and comments that followed. Suffice it to say that, on 13 January 2006, in a letter erroneously dated 13 January 2005, a decision to the effect that the claimant was "not entitled to National Insurance credited contributions from 6/4/97 to 20/4/97" was issued to the claimant and she was informed of her right of appeal against it. At the subsequent hearing before me, the claimant said that she would appeal and she has no doubt done so by now.

  22. In my judgment, the Secretary of State, who was represented at the second hearing by Mr Huw James, solicitor, as agent for the Solicitor to the Department of Health and the Department for Work and Pensions, was right to concede that no proper decision as to the claimant's entitlement to credits from 6 April 1997 to 20 April 1997 had been made in the preceding nine years. Part of the problem in this case undoubtedly arose through confusion engendered by the changes wrought by the 1998 and 1999 Acts but this case does reveal some more fundamental flaws in the way the Department functions to which I should draw attention so that they can be remedied.

  23. The legislation governing the crediting of earnings and contributions is still largely to be found in the Social Security (Credits) 1975 (S.I. 1975/556). Those regulations have been much amended. It was not made any easier to understand them when, in 1987, the concept of a credited Class 1 contribution was replaced by the concept of credited earnings (although the use of the old expression in the letter sent to the claimant ten years later, on 3 November 1997 shows how long it takes for these sorts of changes to become accepted). Broadly, the object of credits is to prevent people having gaps in their contribution records through no fault of their own. Credits are awarded in many circumstances, such as when the contributor is undergoing approved training or is on jury service, but the credits with which this case is most concerned are those awarded in respect of involuntary unemployment and incapacity for work.

  24. Credits in respect of unemployment or incapacity for work need to be claimed (see regulations 8A(3) and 8B(4)). There is limited statutory provision as to how a claim should be made but a claim for jobseeker's allowance or incapacity benefit appears in practice to be taken to be also a claim for, respectively, credits for unemployment and credits for incapacity for work. However, a person may be entitled to credits for unemployment or incapacity for work notwithstanding that he or she is not entitled to jobseeker's allowance or incapacity benefit. On the other hand, entitlement to one of those benefits does not necessarily lead to entitlement to a credit because regulation 3 has the effect that –

    25. "… where under any of the provisions of these Regulations a person would, but for this paragraph, be entitled to be credited with any contributions or earnings for any year, or in respect of any week in a year, he shall be so entitled for the purposes of any benefit if and to no greater extent than that by which his relevant earnings factor for that year falls short of the level required to make that year a reckonable year."

    In other words, a credit is to be awarded only if the contribution condition for entitlement to benefit will not be satisfied without it. Or, at any rate, it ceases to be important whether or not a credit is awarded once a claimant has an earnings factor equal to 52 times that year's lower earnings limit.

  25. Until 1999, an office handling a claim for jobseeker's allowance would pass to the Contributions Agency information arising out of the jobseeker's allowance claim relevant to the award of a credit and the claimant's contribution record would be up-dated to take account of that information. However, as this case illustrates, no formal decision would be issued in respect of entitlement to a credit. Instead, until 1998, the Contributions Agency would send a Deficiency Notice to those contributors whose earnings factors were less than 52 times that year's lower earnings limit, so as to give them an opportunity to challenge the record by, for instance claiming additional credits, or to make up the deficiency for retirement and widow's benefit purposes by paying Class 3 contributions. If there was a dispute that could not be resolved, the contributor was entitled to ask the Secretary of State for a formal decision, which would cover entitlement to credits in the same way as any other contribution question. In the present case, the claimant received no Deficiency Notice because the Contributions Agency had short-sightedly decided to do away with them but she would no doubt have received a formal decision in response to her "appeal" of 20 May 1999, had the legislation not been amended at about that time.

  26. What this case reveals is that, as Mr James was obliged to concede, the Secretary of State has failed to put into place any decision-making process in respect of unemployment credits to replace the one that existed until 1999. As far as I can see, Jobcentres have continued to pass information to those responsible for maintaining contribution records (i.e., the Inland Revenue and now Her Majesty's Revenue and Customs) but there has been no clear view as to who has responsibility for making decisions if the initial view of the Jobcentre is challenged. As a matter of law, it remained with the Secretary of State. One might now expect it to be dealt with in practice by the office that deals with the jobseeker's allowance claim. However, in the present case, when that office did award the two disputed credits, the office dealing with the incapacity benefit claim saw fit to challenge the decision and the credits were taken away. Neither office issued a decision that complied with regulation 28 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991), which requires that a person with a right of appeal under the 1998 Act should be given written notice of that right.

  27. The tension between the two offices may have been partly the result of the way incapacity benefit offices make decisions in respect of credits for incapacity for work. The incapacity benefit office's insistence on the importance of the 1997 tribunal may reflect its experience with regulation 10 of the 1999 Regulations which makes a determination whether a person is, or is to be treated as, capable or incapable of work in respect of incapacity benefit conclusive for the purposes of credits for incapacity for work. However, no equivalent provision exists in respect of decisions concerning jobseeker's allowance, although payment of jobseeker's allowance is a ground for the award of a credit under regulation 8A(2)(a) of the 1975 Regulations so that an award of benefit is conclusive in the claimant's favour in practice. Any determination made in the course of refusing jobseeker's allowance is not conclusive and, therefore, it has always been open to the Secretary of State to award the claimant in the present case the disputed credits if he considered in right to do so, even if the decision would have been inconsistent with the grounds for disallowing jobseeker's allowance.

  28. It is not entirely clear to me whether those decisions in respect of unemployment credits that have got before tribunals have done so by accident rather than because the system of decision-making has recently been altered to enable it to happen. CJSA/924/2003 was one case and I commented there on the effect of regulation 3 of the 1975 Regulations.

    29. "4. A credit is relevant to entitlement to benefit only if there are insufficient paid contributions in the relevant year to satisfy the second contribution condition for entitlement to a benefit that has two contribution conditions. Thus, any "award" of a credit for, say, unemployment is made subject to the condition that the claimant will ultimately only be entitled to have earnings credited for that week "if and to no greater extent than that by which his relevant earnings factor for that year falls short of the level required to make that year a reckonable year" (regulation 3(1) of the Social Security (Credits) Regulations 1975). There is thus usually some uncertainty at the time a decision as to entitlement to credits is made as to its possible practical significance."

    I have some doubt as to whether the legislation as it currently stands really permits any formal decision in respect of credits to be issued before the end of the relevant contribution year, although that is routinely done in respect of credits for incapacity for work. Perhaps regulation 3 should be amended if current practice is to continue.

  29. I also do not recall having ever seen any reference to regulations 3 and 8B of the 1975 Regulations in any case concerning incapacity credits. As far as I am aware, no system exists for informing an appellant and a tribunal that the earnings factor derived from other contributions is such that the outcome of an appeal in respect of credits could not possibly have any bearing on the appellant's future entitlement to contributory benefits. Although many "credits" appeals are cases where the amount of a claimant's entitlement to income support is really what is in issue, I suspect other appeals remain in the system when entitlement to credits is academic. If more credits decisions are to be made before the end of the relevant contribution year, the Secretary of State may wish to give some thought as to how unnecessary appeals can be avoided.

  30. Above all, a system needs to be put in place to ensure that challenges to refusals of credits result in formal decisions that comply with regulation 28 of the 1999 Regulations and inform the contributor of his or her right of appeal. That is so whether credits decisions are to be made during the relevant contribution year or after it has ended.

  31. In the present case, I am not persuaded by the claimant that the tribunal erred in rejecting her challenge to the legislation based on Regulation 79/7/EEC, even though its reasoning left something to be desired. There is force in the submission made by the Secretary of State to the tribunal that, although there is clear evidence that many more women work part-time than men, it does not necessarily follow that many more women than men are adversely affected by the contribution system in the way that the claimant says she was. Those liable to be affected are those with irregular patterns of work and pay leading to them having earnings of more than 50 times the lower earnings limit but paying contributions on earnings that are less than 50 times the lower earnings limit. The proportion of men to women in that category may not be the same as in the whole part-time workforce. It is also arguable that, even if women are disproportionately affected, the legislation can be justified on the ground that the system is administratively simple to operate and at the same time limits the liability to pay contributions in those weeks when a person's earnings are particularly low. However, it is unnecessary for me to consider either whether women are disproportionately affected by the legislation or whether the legislation can be justified. Insofar as she considered that she should have paid contributions on all her earnings, the claimant's challenge was to her liability to pay contributions and that is an issue that has never fallen within the jurisdiction of tribunals and Commissioners.

  32. Nonetheless, in my judgment, the tribunal erred in law because it failed to consider the significance of there being, according to the papers before it, an outstanding question of entitlement to credits. Had it mentioned this to the claimant, she would no doubt have informed the tribunal of the award of credits that had apparently been made in December 2003 and it would either have allowed her appeal or adjourned to give the Secretary of State the opportunity to comment on the information. In the absence of that information, the tribunal ought to have considered adjourning the case because it appears that there is no power in the Secretary of State retrospectively to supersede a decision following a subsequent award of credits.

  33. As the claimant has indicated her desire to appeal against the decision of 13 January 2006, there is still an outstanding issue as to credits and, for the same reason, I must adjourn this case to await the decision of the appeal tribunal.

  34. I offer the following comments on the issue before the tribunal. As her claim for jobseeker's allowance was rejected and she did not challenge the decision of the tribunal, the claimant cannot be entitled to credits under regulation 8A(2)(a) of the 1975 Regulations and she will therefore rely on regulation 8A(2)(b), which provides for earnings to be credited in respect of "a week for the whole of which he satisfied or was treated as having satisfied the conditions set out in paragraphs (a), (c) and (e) to (h) of section 1(2) of the Jobseeker's Act 1995 …" I suspect that the only paragraph that will be in issue will be paragraph (e), which requires the claimant not to be "engaged in remunerative work". Failure to satisfy that condition was the ground on which the adjudication officer disallowed jobseeker's allowance and, presumably, the disallowance was upheld on that ground by the tribunal. However, as I have said above, that decision is not conclusive in respect of the claimant's claim for credits. By regulation 51(1)(a) of the Jobseeker's Allowance Regulations 1996, "remunerative work" is defined as "work in which he is engaged or, where his hours of work fluctuate, is engaged on average, for not less than 16 hours per week". Where a person has a regular cycle of work, he or she may be regarded as engaged in work in weeks in which he does no work (R(IS) 8/95, R(JSA) 3/03). However, in this case, it appears that the claimant may not have had a regular cycle of work and therefore other considerations may apply. I draw attention to my decision in R(JSA) 8/03. The submission made to the last tribunal (see paragraph 14 above) may not be consistent with that decision.

    35. (signed on the original) MARK ROWLAND
    Commissioner
    11 July 2006

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